08 Aug · Thu 2013
In Defense Of Sheryl Sandberg
17 Jul · Wed 2013
DMi Presents: A Dialogue About Leaning In
In her provocative and vitally important book,
Lean In: Women, Work, and the Will to Lead, Sheryl Sandberg ends with:
"My goal is that this book is not the end of the conversation but the beginning."
We will continue the conversation with a panel composed of
successful women who are role models for women and men alike. Please save the date!
Tuesday, October 15, 2013 | 4:00 p.m. to 6:00 p.m.
Reception immediately to follow.
For details about the event, and the people scheduled to present,
as well as a link to register, Click Here.
15 Jul · Mon 2013
She’s Too Sexy For Her Job
The all-male Supreme Court of Iowa re-affirmed its holding that an employer did not engage in sexual harassment when an employee was fired by her boss because he found her sexually irresistible. He was afraid that, if she remained employed, he would not be able to control the temptation to have a sexual relationship with her in violation of his marital vows.
The Court held this was not because of her gender but because of his “feelings” specific to the employee. But wouldn’t that same analysis apply to quid pro quo harassment? Quid pro quo harassment occurs, among other circumstances, where an employer fires a particular employee because she or he refuses to submit to “sexual feelings” that a manager has for her or him.
In both cases, the manager’s actions are based on feelings. In both cases, those feeling relate directly to gender.
How can it be unlawful to terminate an employee because she won’t pull down a manager’s zipper but lawful to terminate an employee because the manager is afraid he will pull down his own zipper?
Not everything unfair is unlawful. But, in this case, I would be surprised if the unfairness were not deemed unlawful by the EEOC under federal law.
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HIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR CREATING AN ATTORNEY-CLIENT RELATIONSHIP
10 Jul · Wed 2013
Boys Without A Club
My most recent blog, Boys Without A Club: http://www.weknownext.com/blog/boys-without-a-club
Published by SHRM's WeKnowNext.
This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations
28 Jun · Fri 2013
Supreme Court’s Affirmative Action Case: Not About But Entirely About Employment
In Fisher, SCOTUS upheld (at least technically) affirmative action in higher education. While the Court reaffirmed that student body diversity could be a compelling state interest, the Supreme Court has made the burden so high for a program to be "narrowly tailored" that the Court has all but gutted "honest" affirmative action.
What about employment? While the Supreme Court’s case has nothing to do with employment, it has everything to do with employment. Same decision makers!
Historically, SCOTUS has offered more flexibility for voluntary affirmative action in education than in employment. And, now, SCOTUS has made it even harder in education.
SCOTUS has never upheld voluntary affirmative action in employment absent a remedial purpose (narrowly defined). The lower courts have held almost unanimously, if not unanimously, that, in the absence of a remedial purpose (narrowly defined), employers cannot give race, gender, etc. a "plus," even where the goal is laudable, that is, to create a culturally-diverse workforce.
What does this mean for diversity programs? It means employers, now more than ever, must do two (2) things:
From a business perspective, make sure their legal hiring, promotional, mentoring, etc. practices are inclusive and tap into the talent in diverse communities.
From a legal standpoint, focus on diversity in experience, perspective, contacts, etc. and not race, gender or other protected factor.
Please e-mail me at firstname.lastname@example.org for articles that address the above two points in more detail.
Please follow me on Twitter at Jonathan__HR__Law.
This blog should be construed as legal advice, creating an attorney-client relationship or applying to specific factual situations.
03 Jun · Mon 2013
Jason Collins: Who Will Come Out Next?
I am pleased to post my most recent blog for SHRM's WeKnowNext: http://www.weknownext.com/blog/jason-collins-who-will-come-out-next. This blog focuses on how to respond if and when an employee comes out to you.
This blog should not be construed as legal advice, as establishing an attorney-client relationship or as pertaining to factual situations.
Employers in the Crossfire
From SHRM's HRMagazine
Employers in the Crossfire
Last year’s massacre at Sandy Hook Elementary School in Connecticut was beyond tragic—and there have been more school shootings since then. In response, lawmakers in Washington have launched a game of political football.
But this isn’t about political wrangling around gun control; it’s about guns in places like schools and worksites. In addition to school shootings, there have been many fatalities caused by people turning their guns on colleagues at work.
According to the U.S. Bureau of Labor Statistics, about 78 percent of the approximately 518 workplace homicides in 2011 were gun-related.
In just the last few months of 2012, there were several tragic examples:
In September, a Minneapolis man who had been discharged opened fire in the company break room, killing five former co-workers before committing suicide.
In November, a man who was about halfway through his shift at a Fresno, Calif., meat processing plant pulled out a handgun and shot four co-workers, killing two before taking his own life.
Eleven days after that incident, a worker at a food producer in Indianapolis shot and killed a co-worker and then himself.
These are not the only examples of workplace homicides carried out with guns in 2012.
Rights vs. Risks
A comprehensive plan to prevent and respond to workplace violence goes beyond a rule on firearms in the workplace, but such a rule remains a critical component.
Of course, most gun owners would never consider using their weapons unlawfully, let alone do so. Those individuals should not be maligned. At the same time, we cannot ignore the inherent risks that firearms pose to employees in the workplace.
Think about what happens when you terminate an employee. He or she may be angry. If his or her temper is hot enough, a cool-down period may be needed to prevent a violent reaction. Access to a firearm in the company parking lot could cut short that cool-down period.
But can employers ban firearms in their workplaces and in motor vehicles in their parking lots? What if an employee has a license to carry the firearm?
Employees 21 and older have the right to drink, but employers still can ban alcohol from the workplace. Are firearms any different?
Some say yes, citing the Second Amendment. However, the scope of the protections it guarantees is not clear. Yet, the Second Amendment clearly applies only to restrictions imposed by the government—not private-sector employers.
States’ Statutory Rights
While private-sector employees have no constitutional right to bring weapons to work, some may have statutory rights. Twenty states have passed laws that protect, to varying degrees, the rights of employees and others to carry firearms on an employer’s premises. Tennessee’s legislation takes effect in July. In most cases, an employee’s right to bring a firearm onto an employer’s premises is limited to keeping the weapon in his or her motor vehicle.
Texas Labor Code Section 52.061 serves as a good example of these laws. It states:
“No employer may prohibit an employee who holds a license to carry a concealed handgun, who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition, from transporting or storing a firearm or ammunition in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.”
There has been litigation about whether laws that allow employees to possess weapons on an employer’s property are inconsistent with, and therefore preempted by, the U.S. Occupational Safety and Health Act. The act’s general duty clause provides that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Employers won one case at the district court level, when the court held that the state law was pre-empted by the general duty clause. But this decision was overruled, and employers have yet to win another case.
In 2009, in Ramsey Winch Inc. v. Henry (555 F.3d 1199), the 10th U.S. Circuit Court of Appeals ruled in 2009 that the general duty clause does not pre-empt state law, disallowing the maintenance or enforcement of policies prohibiting the transportation or storage of firearms in vehicles on private property. The circuit encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
Also, in a 2008 case, Florida Retail Ass’n Inc. v. Att’y Gen. (576 F. Supp. 2d 1281), a Florida district court held that the general duty clause does not pre-empt Florida’s guns-at-work law. The state law allows employees with concealed-weapons permits to keep guns locked in their vehicles while at work.
As of April, legislatures in at least 12 additional states were considering laws that would restrict the right of employers to prohibit employees and others from possessing firearms on their property and in their parking lots.
Pennsylvania legislators were pondering one of the most restrictive measures. House Bill 448 would allow an employee to possess a firearm locked in or “locked to” a private motor vehicle. The plain language would suggest that an employee could have his or her hunting rifle in plain view.
If enacted, to whom would this bill potentially pose the greatest risk? Hint: Which department is involved in most terminations?
Again, most hunters are law-abiding individuals. But if a gun is visible, anyone with a lock cracker can get ahold of and use the gun. As noted at the outset, this article is not about a political issue; it is about a workplace issue. However, political issues turn into legal ones when legislation is enacted, so employers need to be aware of gun laws in states in which they operate.
HR professionals may want to speak up when gun-related issues arise in their state legislature. After all, those in HR are involved in more terminations than other managers.
The Society for Human Resource Management’s position is this:
SHRM opposes any restrictions on the right of employers to determine their own worksite policies regarding weapons on company property (including parking lots). SHRM’s position in no way involves the broader issues of gun control or gun ownership.
Assessing Your Policy
With this background, employers are well-advised to look at their rules on weapons.
How do you define weapons? Yes, the definition should include guns, but it should not be so limited. A machete has no place in the workplace, either. While we cannot ignore guns, to focus solely on them creates significant risk of violence.
If you have an exception for security guards, what steps are you taking to ensure that they are hired or engaged only after being screened with appropriate background checks? What guidelines and supervision do you have in place to minimize the risk of guards improperly using the weapons you may allow them to possess? Of course, be careful not to back into a discrimination claim. U.S. Equal Employment Opportunity Commission officials are looking closely at employers’ use of background checks.
This article is not about the right to bear arms. I leave it to the courts to determine that right.
This article is about the right of employees to have safe workplaces. Protecting that right is the responsibility of employers.
Jonathan A. Segal is a contributing editor of HR Magazine and a partner with Duane Morris LLP in Philadelphia
THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP
Wellness Programs: Gaps In Guidance
Last week, the federal DOL issued HIPAA regulations on wellness programs setting forth both restrictions and requirements. The regulations were issued pursuant to the Affordable Care Act, aka as Obamacare.
But the Affordable Care Act is not the only law that employers must consider. There are many other federal and state laws that may affect wellness programs, too.
For example only, the ADA will apply to many wellness programs. The question is how.
The EEOC has stated that employers may conduct medical examinations and activities as part of a wellness program so long as the program is “voluntary.” The program is voluntary “so long as the employer neither requires participation nor penalizes employees who do not participate.”
However, the EEOC has not provided guidance on what kind of financial incentives are permissible in order for the participation to be considered voluntary under the ADA. For example only, the EEOC has not yet provided any guidance on whether there is any legal distinction between a financial incentive (premium discount) and a financial penalty (higher premium), even though both are functionally the same. Nor has the EEOC provided any guidance on how steep the discount or higher premium may be and the program still be deemed voluntary.
Even if the wellness program is not voluntary, under the ADA, there is a bona fide benefit safe harbor. At least one appellate court has held that the safe harbor applied to the wellness program at issue. Seff v Broward County.
The EEOC has issued no guidance on its position as to the potential application of the safe harbor to wellness programs that may be deemed involuntary.
In a public meeting last month on wellness programs, the EEOC failed to provide any guidance on the ADA issues addressed above.
In this regard, it should be noted that the ADA is not the only federal anti-discrimination law that applies to wellness programs. For example only, GINA does, too. The EEOC has provided some guidance in this area.
To make matters even more complicated, there are state laws that must be considered, too. For example, not every state non-discrimination law has a safe harbor provision that is the same as or similar to the ADA
So proceed cautiously in this area. The DOL regulations are a good starting point but should not be seen as a stopping point. There are additional steps that employers can take to minimize (not eliminate) their legal risks in this area. We are happy to assist.
24 May · Fri 2013
Boys' Club Next Door
I am please to post an article I wrote for Fortune on gender discrimination in general and Boys' Clubs in particular: http://management.fortune.cnn.com/2013/05/24/gender-discrimination-law-suits/.
01 May · Wed 2013
Fish Don't Know They Swim in Water
It is with pleasure that I share with you this blog on corporate culture I wrote for SHRM's We Know Next. http://weknownext.com/blog/fish-dont-know-they-swim-in-water
05 Apr · Fri 2013
Holocaust Days of Remembrance
The United States Congress created the Days of Remembrance as our nation’s annual commemoration of the Holocaust. This year, the Days of Remembrance begin on Monday April 8, 2013.
During the week, may each of us remember, even if for only a moment, the millions who were murdered (including, but not limited to, 6 million Jews) by the Nazi Regime and their willing collaborators. As a result of the Holocaust, approximately 2 out of 3 European Jews were murdered.
May we also remember the countless "Righteous Gentiles" who risked their own lives to save those who were targeted for genocide simply because of who they were.
On a personal note, my family tree is overwhelmed with tombstones for Holocaust victims. At the same time, we have some survivors. For example, one aunt survived only because she was hidden by the the courageous inhabitants of a Catholic Church in Poland.
Each year, I try to read at the Holocaust Museum in DC a few of the names of the many millions murdered. I will do so this afternoon as my way to remember and to respect those who were taken from us.
Never should these people be forgotten. Never again should this happen to any people.
01 Apr · Mon 2013
Friends Don't Let Friends Use HR-Ese
I am pleased to post a blog I wrote for SHRM's We Know Next on using plain speak in the workplace. It can be found here.
21 Mar · Thu 2013
Boys Clubs Go Viral: TweetChat with SHRM's We Know Next
Hope to "see" you there!
15 Mar · Fri 2013
Twitter Coverage of EEOC Commissioners' "Chat" At the SHRM Employment Law and Legislative Conference
I am pleased to post another blog I wrote this month for SHRM's WeKnowNext. The blog includes tweets I wrote, during and after, the chat between Commissionrs Feldblum and Lupnic at the SHRM Employment Law and Legislative Confenence in D.C. They took the "dis" out of DC "disfunction.
06 Mar · Wed 2013
What's Behind The Surge in Disability Claims?
I am pleased to post my most recent article for Fortune/CNN on the surge in ADA claims: http://management.fortune.cnn.com/2013/03/06/disability-workers-united-states/